UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, SAN ANTONIO
AIR LOGISTICS CENTER
KELLY AIR FORCE BASE
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 1617
Union

Case No. 0-AR-1466

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the
award of Arbitrator Russell C. Neas. The Arbitrator found that the Activity did
not have just cause to suspend the grievant for 3 days. However, the Arbitrator
concluded that the Activity had just cause to reprimand the grievant for
being absent without leave (AWOL). He also concluded that the grievant
should (1) be reprimanded for failing to exercise proper control of his tools
and destroying a quality control form, and (2) forfeit all backpay.

The Union filed exceptions under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Activity did not file an
opposition.

We conclude that the Union has failed to establish that
the award is contrary to law, regulation, or the parties' collective bargaining
agreement. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant was suspended for 3 days for being AWOL and
for violations of the tool control program.

The grievant had been charged with being AWOL on April
24, 1987, when he failed to report to work despite the fact that his scheduled
leave for that day had been cancelled. The grievant was charged with tool
control program violations on April 23 and May 12, 1987. On these days, the
grievant was issued a Form 459 (Quality Data Input Record) stating that he had
left his tools unattended in violation of directives. The grievant was also
charged with acting improperly on April 23 by deliberately destroying the Form
459 that he had been issued.

The grievant filed a grievance over the suspension which
was submitted to arbitration. The stipulated issue was whether the Activity had
just cause for suspending the grievant for 3 days.

The Arbitrator ruled that the Activity did not have just
cause to suspend the grievant for 3 days. However, he concluded that the
Activity had just cause to reprimand the grievant for being AWOL. The
Arbitrator also concluded that the Activity had just cause to discipline the
grievant for the tool control program violations.

Although the Arbitrator found that the issuance of a
reprimand for the violations of the tool control program would be too severe,
he found that the grievant's intentional destruction of the Form 459 was a
serious breach of acceptable behavior and compounded the tool control program
violations. Citing his authority under the parties' collective bargaining
agreement, the Arbitrator concluded that the grievant should be reprimanded for
failing to exercise proper control of his tools and destroying a Form 459 and
that as a further penalty, he should forfeit the award of 3 days of backpay for
the vacated suspension.

III. First Exception

A. Contentions

The Union contends that by directing that the grievant
receive two letters of reprimand, the award is contrary to "Air Force
Regulations, Federal Law, the Federal Regulations, and the negotiated Master
Labor Agreement." Exceptions at 1. The Union maintains that the Activity
charged the grievant with being AWOL and with tool control program violations
and took a single disciplinary action for the combined offenses. The Union
argues that the award is deficient because it directs the issuance of more than
one reprimand for the single disciplinary action that was taken.

B. Analysis and Conclusions

We conclude that the Union's first exception fails to
establish that the Arbitrator's award is contrary to any law, regulation, or
the collective bargaining agreement.

The Union has failed to specify any provision of law,
regulation, or the collective bargaining agreement which precluded the
Arbitrator from vacating the suspension and directing that the grievant be
reprimanded for the separate charges. This exception constitutes nothing more
than disagreement with the Arbitrator's findings and conclusions on the
appropriateness of the penalty and provides no basis for finding the award
deficient. See, forexample, NationalTreasury
Employees Union and U.S. Customs Service, NortheastRegion, 28 FLRA
280 (1987) (an arbitrator properly may determine that all or part of a
disciplinary penalty was not for just cause and may set aside or reduce the
penalty).

IV. Second Exception

A. Contentions

The Union contends that because the Arbitrator found that
there was no just cause to suspend the grievant, the award is contrary to law
and regulation by requiring the grievant to forfeit 3 days of
backpay.

B. Analysis and Conclusions

We conclude that the Union's second exception fails to
establish that the Arbitrator's award is contrary to law or
regulation.

In AFGE Local 2718 v. Department of Justice, 768
F.2d 348, 351 (Fed. Cir. 1985), the court reviewed the Back Pay Act, 5 U.S.C.
º 5596, and its legislative history and found no provision which precludes
an arbitrator from denying backpay as part of a decision to mitigate the
penalty imposed by the agency. The court found that adoption of such a
limitation would impair the broad discretion of arbitrators in fashioning a
just award which takes account of the parties' mutual conduct.
Id.

In this case, the Arbitrator found that the evidence
indicated that the grievant was guilty of being AWOL. Award at 11. The
Arbitrator also found that the grievant admitted leaving his tools unattended
on two occasions and that he intentionally destroyed a quality control form.
Award at 18-19. The Arbitrator then determined that the penalty imposed by the
Agency for these offenses was too severe. Accordingly, the Arbitrator mitigated
the penalty from a 3-day suspension to a penalty which included two letters of
reprimand and the forfeiture of 3 days of backpay as part of the mitigated
penalty. In view of the decision of the court in AFGE Local 2718, the
Union's exception provides no basis for finding deficient the Arbitrator's
determination that the grievant should forfeit all backpay.